Reply Brief — Felix O. Brown, Jr., Petitioner v. Ohio

No. 24-6566

IN THE

SUPREME COURT OF THE UNITED STATES

FELIX O. BROWN JR. — PETITIONER

V6.

STATE OF OHIO — RESPONDENT

PETITIONER’S BRIEF IN REPLY TO RESPONDENT'S BRIEF IN

OPPOSITION (RESPONSE) TO PETITIONER'S PETITION FOR WRIT OF

CERTIORARI

FELIX O. BROWN JR. #312-676

GRAFTON CORRECTIONAL INSTITUTION

2500 SOUTH AVON-BELDON ROAD

GRAFTON, OHIO, 44044

Petitioner, Pro se

TRUMBULL COUNTY PROSECUTOR

DENNIS WATKIN

160 HIGH STREET

ADMINSTRATIVE BUILDING,

4th FLOOR

WARREN, OHIO, 44481

Attorney for Respondent

RECEIVED

MAR 25 2025

FFICE OF THE CLERK

SOPNEMe COURT U.S.

Page | 1

Respondent, in clear continued violation of his Oath of Office, is now

attempting to commit fraud upon this Court where his responses in Opposition

lacks support by the record, law, or logic. To wit:

Respondent’s position

“Initially, Brown failed to raise, let alone articulate, the now claimed federal

constitutional violations previously...He is now asking this Court to allow him to

reframe his previous arguments as federal issues, in an effort to invoke the

jurisdiction of this Court to address issues which have been or should have been

adjudicated previously, in both the state and federal systems.”

Id. Brief in Opposition, page(p.) ii.

Petitioner’s reply

Within Petitioner’s “Appellant Brief and Assignment of Errors”, in direct regard

to the three questions presented to this Court within his Petition for Writ of

Certiorari — asserting 6t* and 14t Amendment infringements; i.e. Due Process and

Brady violations — petitioner clearly asserted, under each and every one of his

assignments of error, that the state had denied him his constitutional rights:

“[***: in violation of Appellant’s right to Equal Protection of Law and Due

Process under Art. 1, § 2 and Art. 1, § 16 of the Ohio Constitution; and

under the Fourteenth Amendment of the United States Constitution”

Id. Appellant Brief, pages ii, iii, iv, v, Vi, Vil, viii, 9, 12, 14, 15, 18, 22, 23, and 24;

attached hereto as Exhibit A, (for the Court’s convenience).

Also in direct regard to Question 1, as contained within Petitioner’s Petition

for Writ of Certiorari, Petitioner argued and cited the following under his First and

Fourth Assignments of Error, respectively:

Page | 2

“Further, commanding the jury while they remained deliberating in the jury

room, that they had to stay until they reached a decision: clearly qualified

as a supplemental jury instruction: which further implicates Appellant’s

rights under, both, the United States and Ohio Constitutions. Such as, his

right to: (a) representation of counsel during.a critical stage of the

proceedings; (b) an Impartial Jury and Public Trial; and (c) be present

therein. Absence of counsel during a critical stage of a trial created a

presumption of error and a denial of constitutional rights without requiring

a showing of prejudice. See United States v. Cronic, (14984), 466 U.S. 648,

659, fn. 25; State v Taylor, 2015-Ohio-2080, [*P21](11th App. Dist.).

“Presuming waiver of counsel from a silent record is impermissible.”

Carnley v. Cochran, (1962) 369 U.S. 506, paragraph two of the syllabus.”

Id. Exhibit A, page 12.

“A criminal defendant ‘may satisfy the ‘unavoidably prevented’ requirement

contained in Crim. R. 33(B) by establishing that the prosecutor suppressed

the evidence on which the defendant would rely in seeking a new trial. See,

State v. Bethel, 2022-Ohio-783, [*P 25](citing Banks v. Dretke, 540 U.S.

668, 695, 124 S.Ct. 1256, 157 L.Ed.2d 1166 (2004); Kyles, 514 U.S. at 482-

433, 115 S.Ct. 1555, 181 L.Ed.2d 490; and Strickler, 527 U.S. at 282-285,

119 S.Ct. 1936, 144 L.Ed.2d 286.)

“[P]rosecutors have ‘a duty to learn of any favorable evidence known to the

others acting on the government’s behalf in the case, including the police.”

State v. Trimble, 2016-Ohio-1307,[*P27](11* App. Dist.)(quoting Kyles v.

Whitley, 514 U.S. 419, 487, 115 S. Ct. 1555, 131 L. Ed. 2d 490 (1995).

United States v. Payne, 63 F.3d 1200, 1208 (2d Cir.1995)).

“Judge Logan erroneous concluded that: ‘Defendant offered no evidence,

much less clear and convincing proof, of any effort made to obtain

information from jurors in the 120-day period after the verdict.

Page | 3

“Here, Judge Logan, even with the presentation of clear evidence showing

that an off the record communication had with the then deliberating jury

by/or through the bailiff was knowingly performed in a clandestine fashion —

so as to prevent Appellant from ever becoming aware ofsuch: Judge Logan

deemed it a necessary requirement for the appellant to have gained

knowledge of such secretive, unlawful, communication (which deprived

Appellant of his basic procedural-due-process protections during a critical

stage of his criminal jury trial proceedings) through some type of bare hook

fishing expedition so as to offer clear and convincing proof of efforts made to

obtain such information from jurors so as to present such within the 120-

day period after the verdict...

Id. Exhibit A, pgs. 16-17.

In direct regard to Question 2, as contained within Petitioner’s Petition for

Writ of Certiorari, Petitioner argued and cited the following under his Fifth

Assignment of Error:

“[P]rosecutors have ‘a duty to learn of any. favorable evidence known to the

others acting on the government's behalf in the case, including the police.”

State v. Williams, 2023-Ohio-3526, [*P28](11 App. Dist.)(quoting Kyles v.

Whitley, 514 U.S. 419, 437, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995)).

“Where a state provides a statutory right to appeal, that right must meet

the constitutional requirements of due process; this particularly so when it

has been shown by evidence that due process was not accorded in the trial

court. While there is no constitutional right to an absolute accurate

transcript, indigent defendants generally have a right to a reasonably

accurate transcript, if one is necessary to effect an appeal. Otherwise, being

deprived of a reasonably accurate transcript defendant would be unjustly

deprived from assigning error to the reversible misconduct(s) that actually

Page | 4

occurred within his criminal trial proceedings which violated defendants

right to due process.

Id. Exhibit A, page 21; see also “Crim. R. 33(B), page 4, fn.7

“Griffin v. Illinois and its progeny establish the principle that the State

must, as a matter of equal protection, provide indigent prisoners with the

basic tools of an adequate defense or appeal, when those tools are available

for a price to other prisoners. While the outer limits of that principle are not

clear ,there-can-be-nodeubt thatthe-State must previde an indigent

defendant with a transcript of prior proceedings when that transcript is

needed for an effective defense or appeal.’ Britt v. North Carolina, (1971)

404 U.S. 226, 227.

“[Tlhe state must afford defendants with a fair and adequate procedurels]

for settling transcripts.’ Maxwell v. Conway, 2009 U.S. Dist. LEXIS 129999,

at *7 (S.D.N.Y. May 19, 2009). To demonstrate a due process violation

arising out of transcript inaccuracies, a Petitioner must show; that either

the available settlement procedures were unfair or the existence of

intentional tampering; and (2) that the errors prejudiced his right to appeal.

See, Burrell v. Swartz, 558 F. Supp. 91, 92 (S.D.N.Y. May 19, 2009).”

Id. Crim. R. 33(B), pgs. 6-8

Law

This Court has held, in Webb v. Webb:

“It is a long-settled rule that the jurisdiction of this Court to re-examine the

final judgment of a state court can arise only if the record as a whole shows

either expressly or by clear implication that the federal claim was

adequately presented in the state system. New York ex rel. Bryant v.

Zimmerman, 278 U.S. 63, 67 (1928); Oxley Stave Co. v. Butler County, 166

U.S. 648, 655 (1897)

Page | 5

OkRE

“There are also very practical reasons for insisting that federal issues be

presented first in the state-court system. The requirement affords the

parties the opportunity to develop the record necessary for adjudicating the

issue. It permits the state courts to exercise their authority, which federal

courts, including this one, do not have at least to the same extent, to

construe state statutes so as to avoid or obviate federal constitutional

challenges such as vagueness and overbreadth. The rule also insures that if

there are independent and adequate state grounds that would pretermit the

federal issue, they will be identified and acted upon in an authoritative

manner. Finally, if the parties to state-court litigation are required to

present their federal claims in the state tribunals in the first instance, those

issues will be adjudicated in the state courts where necessary to dispose of

the case. In most instances, such a judgment will be supported by an

opinion that may well obviate any reason for our giving plenary

consideration to the case. In terms of our own workload, this is a very

substantial matter.

“For all of these reasons, we, as well as litigants seeking to bring cases here

from the state courts, should take care to comply with the jurisdictional

statute and our rules. Although it would avoid uncertainty and the

expenditure of much time and effort if litigants identified in the state courts

precisely the provisions of the Federal Constitution or the federal statute on

which they rely, we have not insisted on such inflexible specificity. The

inevitable result is that at times there have been differences of opinion as to

whether the state courts have been afforded a fair opportunity to address

the federal question that is sought to be presented here. At the minimum,

however, there should be no doubt from the record that a claim under a

federal statute or the Federal Constitution was presented in the state courts

and that those courts were apprised of the nature or substance of the federal

Page | 6

claim at the time and in the manner required by the state law. Otherwise,

we cannot be sufficiently sure, when the state court whose judgment is

being reviewed has not addressed the federal question that is later

presented here, that the issue was actually presented and silently resolved

by the state court against the petitioner or the appellant in this Court.”

Id. 451 U.S. 4938, 496-97(1981)

This Court has, also, held in Howell v. Mississippi:

“{A] litigant wishing to raise a federal issue can easily indicate the federal

law basis for his claim in a state-court petition or brief . . . by citing in

conjunction with the claim the federal source of law on which he relies or a

case deciding such a claim on federal grounds, or by simply labeling the

claim ‘federal.’ Baldwin v. Reese, 541 U.S. 27, 32, 158 L. Ed. 2d 64, 124 S.

Ct. 1347 (2004). In the context of § 1257, the same steps toward clarity are

just as easy to take and are generally necessary to establish that a federal

question was properly presented to a state court.”

Id. 543 U.S. 440, 444 (2005).

Petitioner’s notice

Further, please be aware that the Respondent is attempting to purposely

mislead this Court, as it’ has successfully misled the State courts, in direct regard to

the following material evidence:

Respondent’s position

“Brown's allegations regarding an individual speaking with the jury were

previously raised and resolved within his direct Appeal when this Court

ruled the ‘Allen’ charge was properly provided to the jury.” ©

Id. Brief in Opposition, page 3.

Page | 7

Petitioner’s reply

In other words, the prosecution is continuing to fraudulently assert that the

“Allen Charge” delivered by the trial judge on the record in open court ; as clearly

documented within State v. Brown, 2000 Ohio App. LEXIS 1430, at [*10-*13], and

the offthe record unauthorized communication had with the jury on a separate

occasion while the jury remained zn the jury room during deliberations were one in

-the-same.

Juror Adriana Perretti’s affidavit, which was obtained by a private investigator

in 2022, clearly reads:

“T recall someone coming into the jury room during our deliberation and

inquiring about how things were going and upon being informed that the

vote was 10 to 2, then 11 to 1 this person told us to stay until we reach a

decision.”

Yet, even with petitioner’s presentation of this affidavit and additional

substantial evidence within the Crim. R. 33(B) proceedings and appeal of said (1)

debunking the respondent’s fraudulent assertion, and (2) clearly petitioning for a

Brady analysis to be performed in accordance with State v. Bethel/Id. Exhibit A,

pgs. 12-17 — the trial court during its’ determination of petition’s Crim. R. 33(B)

petition, and the appellate court’s review of the denial of said Crim. R. 33(B) motion:

still committed an erred of law by refusing to perform the requested Brady analysis.

Said Courts held instead that: “Brown submitted absolutely no evidence, much less

1167 Ohio St. 3d 362 (2022).

Page | 8

clear and convincing proof, that he made any attempt to obtain this information

within 120 days after the verdict.” See, Exhibit A, pgs. 12-17.

Petitioner, then filed a timely App. R. 26(A) reconsideration motion within

the court of appeals arguing that, both, the appellate court and the trial court

committed an error of law by failed to appropriate review his Brady claim, raised

under his fourth assignment of error, and would the court now perform a Brady |

analysis. The court of appeals then issued the following Judgment Entry:

“Appellant first asserts this court did not appropriately review his

argument under his fourth assignment of error. See Brown, 2024-Ohio-792,

[*P19-20]. Appellant specifically argues he satisfied the ‘unavoidably

prevented’ prong of Crim.R. 33 by establishing that the prosecutor in this

case, via another government actor, ‘suppressed’ evidence on which

appellant relied to seek a new trial. Appellant maintains this court failed to

address the constitutional issue of whether he was deprived of due process

when, as the affidavits attached to his motion for leave demonstrate, a

government actor allegedly entered the jury room, interrupted its

deliberations, and urged it to reach a verdict. [Emphasis added.]

“*** To the extent appellant failed to establish he was ‘unavoidably

prevented’ this court was not required to discuss the constitutional

dimensions of his position...”

Id. Appendix F, pgs. 4-5; attached to Petitioner’s Petition for Writ of Certiorari.

Law

The Supreme Court of Ohio in State v. Bethel, clearly relied on federal law, as

articulated in Banks v. Dretke?, to provide the actual basis for their’ decision to

2540 U.S. 668, 695, 124 S.Ct. 1256, 157 L.Ed.2d 1166 (2004)

Page | 9

hold that when a defendant seeks to assert a Brady claim in an untimely or

successive petition for postconviction relief, the defendant satisfies the unavoidably

prevented requirement contained in [Crim. R. 33(B) by establishing that the

prosecution suppressed the evidence on which the defendant relies. To wit:

“In Brady, the Supreme Court of the United States held that a_ state

violates the Fourteenth Amendment to the United States Constitution when

~ it ‘withholds evidence that is favorable to.the defense and material to the

defendant's guilt or punishment.’ Smith v. Cain, 565 U.S. 73, 75, 182 S.Ct.

627, 181 L.Ed.2d 571 (2012) (summarizing Brady's holding). “There are

three components of a true Brady violation: The evidence at issue must be

favorable to the accused, either because it is exculpatory, or because it is

impeaching; that evidence must have been suppressed by the State, either

willfully or inadvertently; and prejudice must have ensued.’ Strickler v.

Greene, 527 U.S. 263, 281-282, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999).

‘(Flavorable evidence is material, and constitutional error results from its

suppression by the government, 'if there is a reasonable probability that,

had the evidence been disclosed to the defense, the result of the proceeding

would have been different.’ Kyles v. Whitley, 514 U.S. 419, 433, 115 S.Ct.

1555, 131 L.Ed.2d 490 (1995), quoting United States v. Bagley, 473 U.S.

667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). A different result is

reasonably probable ‘when the government's evidentiary suppression

‘undermines confidence in the outcome of the trial.’ Id. at 434, quoting

Bagley at 678.

kek

“The court of appeals used similar reasoning, holding that a ‘defendant

cannot claim evidence was undiscoverable simply because no one made

efforts to obtain the evidence sooner.’ 2020-Ohio-1343, J 20. The court

stated that ‘Bethel was not prevented by the state from discovering Chavis'

statements to Withers.’ Id. at J 25. It reasoned that Bethel should have

Page | 10

suspected that Withers had potentially relevant information because

Withers's name was on the prosecution's pretrial witness list and Bethel

and his counsel had communicated with Chavis before trial. Id. The court of

appeals concluded, in other words, that Bethel should have conducted his

own investigation to discover what Chavis had said to Withers.

“The lower courts placed a burden on Bethel that is inconsistent with Brady.

In Banks v. Dretke, 540 U.S. 668, 695, 124 S.Ct. 1256, 157 L.Ed.2d 1166

(2004), the Supreme Court of the United States explained that criminal

defendants have no duty to ‘scavenge for hints of undisclosed Brady

material.’ Since the decision in Banks, multiple federal circuit courts and

other state supreme courts have repudiated the imposition of any duediligence requirement on defendants in Brady cases. See, e.g., Dennis v.

Secy., Pennsylvania Dept. of Corr., 834 F.3d 263, 290-293 (3d Cir.2016);

Amado v. Gonzalez, 758 F.3d 1119, 1136-1137 (9th Cir.2014); United States

v. Tavera, 719 F.3d 705, 711-712 (6th Cir.2013); State v. Wayerski, 2019 WI

11, 385 Wis.2d 344, 922 N.W.2d 468, { 51; People v. Bueno, 218 CO 4,409

P.3d 320, J 39; State v. Reinert, 2018 MT 111, 391 Mont. 263, 419 P.3d 662,

{| 17, fn. 1; People v. Chenault, 495 Mich. 142, 152, 845 N.W.2d 731 (2014).

“It is well settled that a defendant is entitled to rely on the prosecution's

duty to produce evidence that is favorable to the defense. See Kyles, 514

U.S. at 432-433, 115 S.Ct. 1555, 131 L.Ed.2d 490. A defendant seeking to

assert a Brady claim therefore is not required to show that he could not

have discovered suppressed evidence by exercising reasonable diligence. See

Strickler, 527 U.S. at 282-285, 119 S.Ct. 1936, 144 L.Ed.2d 286. We hold

that when a defendant seeks to assert a Brady claim in an untimely or

successive petition for postconviction relief, the defendant satisfies the

‘unavoidably prevented’ requirement contained in R.C. 2953.23(A)(1)(a) by

establishing that the prosecution suppressed the evidence on which the

defendant relies.

Page | 11

Skid

“The ‘unavoidably prevented’ requirement in Crim.R. 33(B) mirrors the

‘unavoidably prevented’ requirement in R.C. 2953.23(A)(1).” State v. Barnes,

5th Dist. Muskingum No. CT2017-0092, 2018-Ohio-1585, J 28.”

Id. State v. Bethel, 167 Ohio St. 3d at 366- 377.

Law

“We must first consider whether we have jurisdiction to review the Ohio

Supreme Court's decision. Respondent contends that we lack such jurisdiction

because the Ohio decision rested upon the Ohio Constitution, in addition to the

Federal Constitution. Under Michigan v. Long, 463 U.S. 1032, 77 L. Ed. 2d

1201, 108 S. Ct. 3469 (1983), when ‘a state court decision fairly appears to rest

primarily on federal law, or to be interwoven with the federal law, and when the

adequacy and independence of any possible state law ground is not clear from

the face of the opinion, we will accept as the most reasonable explanation that

the state court decided the case the way it did because it believed that federal

law required it to do so.” Odio v. Robinette, 519 U.S. 33, 36-37 (1996).

Petitioner’s reply

Thus, clearly, petitioner’s presentation of evidence entitled him as a

matter of law to a Brady analysis. Because no court — not a trial court, not an

appellate court, nor even a state supreme court — should have the authority,

within its discretion, to commit an error of law.

Respondent’s position

“Likewise, Brown’s purported evidence failed to demonstrate by clear and

convincing evidence that he was entitled to a new trial. Consequently, the

Eleventh District Court of Appeals appropriately affirmed the trial court’s

denial of Brown’s Motion for Leave for a New Trial with their conclusion that

Brown’s arguments were without merit.”

Page | 12

Id. Brief in Opposition, page 6.

Petitioner’s reply

Petitioner presented irrefutable newly discovered material evidence — Juror’s

Perretti’s affidavit — and argument under his First, and Fourth Assignments of

Error, via Juror’s Perretti’s affidavit, that:

“Commanding the deadlocked jurors,-by/er through the bailiff,~while they

remained deliberation in the jury room, via an unauthorized

communication: that they Aad to say until they reach a decision: clearly

qualified as a supplemental jury instruction where petitioner’s federal

constitutional right(s) to representation of counsel during a critical stage of

the proceeding and right to be physically present therein attached. And both

violation constituted a per se violation mandated the granting of a new

trial.”

Id. Exhibit A, pgs. 9-12.

Petitioner, also, presented the following:

“Bailiff misconduct in communicating to a deliberating jury will be

presumed prejudicial where after such communication a verdict is returned.

See State v. King (1983), 10 Ohio App. 3d 93, 460 N.E.2d 1148, citing State

v. Adams (1943), 141 Ohio St. 423, 48 N.E.2d 861, where a bailiff standing

inside the doorway of the jury room after being informed the jury could not

reach a decision replied, ‘You can't do that. You must reach a decision if you

have to stay here for three months.’ State v. Foster, 1995 Ohio App. LEXIS

4812, [*5](8th App. Dist.)”

Id, Defendant’s Crim. R. 33(B) motion, fn. 16; Exhibit A, Fn. 6.

Page | 13

Petitioner further presented irrefutable newly discovered material evidence,

law, and argument under his Fifth, Sixth and Seventh Assignments of Error,

establishing that the contents of Juror Brunsetter’s affidavit mandated the granting

of him a new trial: To wit:

e “A member of the jury, Cathy Brunstetter, first being sworn according to

law, deposed and stated the following within her affidavit, that she

specifically recalls that during Dr. (William) Cox’s testimony, he

informed them that: ‘the defendant placed the weapon against the

victim’s head and intentionally pulled the triggers he pushed that gun

into her head.” (Yet, nowhere contained within the entirety of the alleged

official trial transcript is it documented that Dr. Cox testify that ‘the

defendant ... intentionally pulled the trigger and/or he pushed that gun

into her head’)

“In the instant case, one of the ultimate issues before the jury concerned

appellant's state of mind at the time of the incident, i.e., [his] mens rea.

Since the determination of whether a person acted *** purposely *** is

typically predicated upon an interpretation of the circumstances

surrounding the murder, it does not require the application of expert

knowledge. Accordingly, expert opinion testimony concerning the accused's

state of mind is not admissible under Evid. R. 704. State v. Poling, 1991

Ohio App. LEXIS 2294, [*27]-[*28](11th App. Dist.)”

Id. Exhibit A, pgs. 19-20.

Page | 14

Respondent’s position

“[Rlarely [does this Court] grant review where the thrust of the claim is that

a lower court simply erred in applying a settled rule of law to the facts of a

particular case. This Court does not issue sweeping constitutional declarations to

relieve a particular litigant of the adverse consequences of a single lower court

ruling... “This is exactly the approach petitioner is advocating herein as he is

unhappy with the trial court’s findings, the appellate court’s affirmation of that

decision and the Ohio Supreme Court’s denial of his requested review.”

Id. Brief in Opposition, page 7.

Petitioner’s reply

The [t]hree questions presented to this Court are novel in nature, federal

constitutional inquiries of substance, not theretofore determined and settled by this

Court that shall not only affect the case before you, but shall effect the specifics of

all related post-trial proceedings — in state court — involving newly discovered

material evidence that was [willfully] suppressed by the state.

Of course the Respondent(s) wishes that this Court “dismiss or deny the

Petitioner’s Petition for Writ of Certiorari.” Thus, enabling prosecutors throughout

the State [of Ohio] to continue to covertly deny and/or infringe upon criminal

defendants’ fundamental federal constitutional rights? during post-conviction

3That is his right to representation of counsel during a critical stage, his right to be

present during a critical stage, his right to an impartial jury, his right a reasonably

accurate transcript, on direct appeal that contains the reversible misconducts that

actually occurred during his criminal (jury) trial.

Page | 15

proceeding, in state and federal courts‘. And if by change a petition is successful in

having the merits of constitution violations addressed and the conviction reversed

the prosecutors know that they shall have another opportunity to retrial said

petitioner: in spite of the wanton constitution violations that the prosecution

undertook in the first instance to prevent the petitioner from receiving an acquittal

or a hopelessly deadlocked jury.

CONCLUSION

The petition for a writ of certiorari should be granted.

Sincerely submitted,

"Lid, KZ Pee

Felix QBrown Je¥312:

CERTIFICATE OF SERVICE

I hereby certify that a true and full copy of the foregoing Petitioner’s Reply

Motion was sent to Trumbull County Prosecutor, at 160 Main St., Warren, Ohio,

44481, via First Class U.S. Mail, on this 17‘ day of March, 2025.

Fake. mea

Felix O. ‘Brown Jr. #3126

MAILING DECLARATION

I, Felix O. Brown Jr., do herein swear, affirm, and attest, under the penalty

of perjury, and under the authority of Houston v. Lack, that the original of this

4 Newly discovered Brady violations contained within a second or successive 28

U.S.C.S. § 2254 habeas petition are subjected to the gatekeeping restriction

contained in 28 U.S.C.S. § 2244.

Page | 16

Motion in Reply with attached Exhibit, was surrendered over to the appropriate

correctional institution personnel to be mailed, via certified mail, to the United

States Supreme Court at 1 1%t Street, Washington, D.C., 20543-0001, by my placing

such in the prison mailbox on 03/17/2025.

Page | 17

EXHIBIT A

Page | 18

Sh oy EM BA

IN THE ELEVENTH DISTRICT COURT OF APPEAL

TRUMBULL COUNTY, OHIO

COURT APPEAL CASE NO. 2023 TR:00064

STATE OF OHIO, )

Plaintiff-Appellee )

vs, | } {ur OF rears

FELIX O. BROWN JR., oer 38 agog

Defendant-Appellant eens

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Dennis Watkins

Trumbull County Prosecutor

160 High St.,

Warren, Ohio, 44481

ATTORNEY FOR PLAINTIFF-APPELLEE

Felix O, Brown Jr. #312-676

Grafton Corr. inst.

2500 S. Avon-Beiden Ra.

Grafton, Ohio, 44044

Indigent, Pro se

DEFENDANT-APPELLANT

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TABLE OF CONTENTS AND ASSIGNMENTS OF ERROR

Page(s)

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FIRST ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED AS A MATTER OF LAW IN OVERRULING APPELLANT'S

MOTION FOR LEAVE: TO THE PREJUDICE OF APPELLANT (“Judgment Entry”, T.d. 98,

p. 3)

ISSUE PRESENTED FOR REVIEW AND ARGUMENT.......:ccsseseseeteeesesrrennennsesersesnenanennnanenensarsnsess 9

1. Did the trial court erred as a matter of law by ruling contrary to clear and

unambiguous statutory law of ORC Ann, 2945.33 and Ohio Crim. R. 24(H)(4) (i) during

its’ assessment of the content of Juror Adriane Perretti affidavit: in violation of

Appellant’s right to Equal Protection of Law and Due Process under Art. 1, § 2 and Art.

1, §16 of the Ohio Constitution; and under the Fourteenth Amendment of the United

States Constitution?

AUTHORITES

Fourteenth Amendment of the United States COMSEIEUEONT.............ccssceescseeneseeeeneeneeanentes 7

Ohio Constitution Art. 1, § 2.cc.ccceccecssssssseecsecsrsessescsnscnsnesensnessssanansaesnessessesnesenanssaneanenesanenses 9

Ohio Constitution Art. 1, $16.00... cece seeseneeceeeeeseeenesenneseene eM ccseeseiees! Ba euessersevereatetts 9

Ohio Crim. R. 24(H)(4)(6).esscssccessscecescsnssssssssssensessessessessaccnscersesessesnaessanecssvssensessnscnyansaasancssies 10,11

OHIO JUD. Canon R. Lidice cecesscessecensererseeceseneeesseseessesenesessnssseeersressnasssensseursesassasasessoenuerys 11

ORC ANN, 2945.33 .cccecseccessesscscsesceseecseseecsecrsenesoustsceesenseeseneasscsenecnesesseseencnaconssnarecenauagaeaen sey tee 9,10,11

ORC AN, 3.23 .ccccccsecsessessouecssscsccssseseecurscecossoesseuneecnsesconeneansceatnansasentesesansenssnesneenseeanseasaneeanenses es 11

Carnley v. Cochran, (1962) 369 U.S. 506....-ssscscsesssesseesssesessssscessessseunesnnensnucensersnnessnsnsnnnyses 12

Emmert v. State, (1933) 127 Ohio St. 235...ccccecseccesssesnessnesneeneenseneensesssssessensteress B, sscssnssacssesas 11

Johnson v. Abdullah, 2021-Ohi0-3304........csssecscsceeseseecsneseseresensnetensneenanensenessneneesesananentenses 9

State ex rel. Garcia v. Baldwin, 2023-Ohi0-1636..........:ssesseccsseseneesenesseren ene seneeneesnenesenstey 10

State v. Bethel, 2022-ONi0-783......ssssesssssecreeeeseesenensatessnsersecsisanecnnnentecansersessaenenensnneseenennee ets 10

State v. Mancini, 2020-Ohi0-990,(11'" App. Dist.).....ccceecseetssenscnsnecsaeesnens veseeaneee see 10

State v. McNeal, (2022) 169 Ohio St. 3d 47 ....ccsssesescsssneeseeseessssstssssneceesnsannencannsescnnrerentsnnssiins )

State v. Taylor, 2015-Ohio-2080,(11™ App. Dist.) .....sssesssseseeeen soe SSE SESS «ef 12

State v. Walden, 19 Ohio App. 3d. 141(10 App. Dist. 1984).......cesccecscnsssseeesneessenteces 11

United States v. Cronic (1984), 466 U.S. 648... sssseeeteeeeees eee ees coe eee eee ceeeecaces sas 12

SECOND ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S MOTION FOR LEAVE: TO

THE PREJUDICE OF APPELLANT (“Judgment Entry”, T.d. 98, p. 3)

ISSUE PRESENTED FOR REVIEW AND ARGUMENT.........::ssssssessesesseseseseneerseerensnseseanasneseecenenanenzens 12

1. Did the Trial Court err when it reached the incorrect legal conclusion by

incorrectly analyzing a key fact of the case: in violation of Appellant’s right to Equal

Protection of Law and Due Process under Art. 1, § 2 and Art. 1, §16 of the Ohio

Constitution; and under the Fourteenth Amendment of the United States

Constitution?

AUTHORITIES

Fourteenth Amendment of the United States CONSTITUTION. ...........csecccrsnssereenneneetenseesesens 12

Ohio Constitution Art. 1, § 2... cee setoceapevaccorserseuesesangeusessceasnosnenscastavecoasssusaneseedensesapepaces seas 12

Ohio Constitution Art. £, §16:.......... eee eect ———— ee eee 12

In re D.P., 2023-Ohio-3120 (11'" App. Dist.)....cs-ssscscssscscseseseesseessesesseceersneseeceseeseenseertetnnetsaneet 12

State v. Brown, 2000 Ohio App. LEXIS 1430 (11 App. Dist.)...ssecesessescesceneensenenseenssenes 13

THIRD ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S MOTION FOR LEAVE: TO

THE PREJUDICE OF APPELLANT (“Judgment Entry”, T.d. 98, p. 3)

ISSUE PRESENTED FOR REVIEW AND ARGUMENT.......:::cceseresrsessersnserscensnenensnensnanensesanansnsenenanes 14

1. Did the Trial Court err to the prejudice of Appellant when it reached the

incorrect legal conclusion by incorrectly analyzing a key fact of the case: in violation of

Appellant’s right to Equal Protection of Law and Due Process under Art. 1, § 2.and Art.

1, §16 of the Ohio Constitution; and under the Fourteenth Amendment of the United

States Constitution?

AUTHORITIES:

Fourteenth Amendment of the United States Constitution...........ce ae nee 14

Ohio Constitution Art. 1, § 2... cesses ceeseensesteesessrseneeressersenes ate eouieseeanensenee 14

Ohio Constitution Art. 1, §16..0... sess sseeesenseeseereeserentseenseees Se eeeeseeiceseess secre 14

State v. Adams, 141 Ohio St. 423, 424(1943).......cccecsessessesnesnesneenesnssessnssnesnsessensessensnanennesses 15

V.T. Larney Ltd. v. Ohio Civ. Rights Comm'n, 2023-Ohio-3123, [(11"" App. Dist.)............14

FOURTH ASSIGNMENT. OF ERROR

THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED ITS DISCRETION IN

OVERRULING APPELLANT'S MOTION FOR LEAVE: TO THE PREJUDICE OF APPELLANT

(“Judgment Entry”, T.d. 98, pg.’ 3-4)

ISSUE PRESENTED FOR REVIEW AND ARGUMENT.............. seovavasscencaccnesarerenesansonsousbbibeastsudeieaeneeneee 15

1. Did the Trial Court err when it reached the incorrect legal conclusion by

incorrectly analyzing a key fact of the case: in violation of Appellant’s right to Equal

Protection of Law and Due Process under Art. 1, § 2 and Art. 1, §16 of the Ohio

Constitution; and under the Fourteenth Amendment of the United States

Constitution?

AUTHORITIES:

Fourteenth Amendment of the United States Constitution ..........ceccceestenesneessseeseeseeenees 15

Ohio Constitution Art. 1, § 2...ccccccceccssscceesessesssescseseesesseesenseseensnoneseessneseneansessaeresseneneneanaananaigs 15

Ohio Constitution Art. 1, §16........ccccscsescssscsssesssssnssssessesesscsssnecereteneecensenserssescessasansnsesessensaear ees 15

State v. Adams (1943), 141 Ohio St. 423.......cescessecsecnseseesstessnecesensieanssenssnannensceraeeaneqncarontennes se 17

State v. Bethel, 2022-OhiO-783.......s-sssssssssssesnernssessensenenncansnnssnsnnsanssnacessssersssessesueesenennsansensnness ets 16

State v. Foster, 1995 Ohio App. LEXIS 4812,(8th App. DiSt.)....ccssessessssccestesssesseseerstsscesensesereee 17

State v. King (1983), 10 Ohio App. 3d 93 (10 App. DISt.)......sseesscsessseescesensseeneeeeeeseereets 17

State v. Trimble, 2016-Ohio-1307 (11' App. Dist.).....s.cssssssccessesssvanssnnsseessecsersnnsetsessseesenrents LB

IV

V.T. Larney Ltd. v. Ohio Civ. Rights Comm'n, 2023-Ohio-3123,(11" App. Dist.)......... ppp

FIFTH ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED AS A MATTER OF LAW IN OVERRULING APPELLANT'S

MOTION FOR LEAVE: TO THE PREJUDICE OF APPELLANT (“Judgment Entry”, T.d. 98, p. 3)

ISSUE PRESENTED FOR REVIEW AND ARGUMENT..........:ccscscssescessrseensnsesrsenasnanasnssnensnsanerscnesnearees 17

1. Did the trial court erred as a matter of law by ruling contrary to clear and

unambiguous statutory, and constitutional, law when it held: the affidavit of Juror:

Cathy Brunsetter attesting her recollections regarding the testimony from two

witnesses had at trial is not evidence that would or could have been would have been

produced at the trial had they been discovered earlier, and are therefore outside the

scope of Crim.R. 33: in violation of Appellant’s right to Equal Protection of Law and

Due Process under Art. 1, § 2 and Art. 1, §16 of the Ohio Constitution; and under the

Fourteenth Amendment of the United States Constitution?

AUTHORITIES:

Fourteenth Amendment of the United States Constitution ........ccccesseneeeeeneeeeseneeees 18

Ohio Constitution Art. 1, § 2.......cccssssssescescescsessesecssscensoeseransesesunessasscaesacsensceeeaneneeeneeeneates 18

Ohio Constitution Art. 1, §16.........cccssesscsseesssssnscesensesensenesssseesacsnsseasnesersoeseeseeeenasseneenees 18

Ohio Constitutional Article IV, SECTION Low... ctessesessserenseessesesssescsenecsesssscseneesenseaneennenee 19

Ohio Constitutional Article IV, SECTION 2.0... sssesesesseeestsessetssnentscsecesseeenensnecneenansanen ees 19

Ohio Constitutional Article IV, SECTION 3.0... ees cosets eseetsesesersneceesseseeensaeeceesenssesenes @9

Ohio Crim. R. 33... eeseceeecesteecseseseecteennens sosssosesvngatseuedttaecennseppecconcrensaesseeoratiu seo teasbonsesaeat 18

Brown v. Morganstern, 2004 Ohio 2930,(11th App. Dist.).......... sivadd seatenseonsacarenevasersseosed 20

In re Holmes, 104 Ohio St. 3d 664 (2004)... eesssseseecesseeeeeessesneneceneeesesseegeeereeseeneene 18,21

Johnson v. Abdullah, 166 Ohio St. 3d 427(2019).........csscsesseseesesseesssstseetersneessesecnsneneneeatees 18

State v. Brown, 2000 Ohio App. LEXIS 1430, [*P28](11" App. Dist.).......ccececeeeeeneeees 20,21

State v. Cunningham, 1993 Ohio App. LEXIS 1914 (4 App. Dist.).....cccecseceeeeeceeeeeeeees 19

State v. Poling, 1991 Ohio App. LEXIS 2294,(11th App. Dist.).......ccccssseseneeneneersnnes 20

State v. Schiebel, (1990) 55 Ohio St. 3d 71... cecseseesesessesnesseseseseaeeneeneacseneaneneneensneeneeses 19

State v. Tiedjen, 2019-Ohi0-2430,(8'" App. Dist.)......sssscssssssscesseessssnessaseessssesssneeenmennee ld

State v. Walden, 19 Ohio App. 3d. 141(10" App. Dist. 1984) .........cccccscsesseseeeseeeseneereess 18

Vv

State v. Williams, 2021-Ohio-241,(11" App. Dist.)...c..ccccccsesccsesccsssescsesescsecsessceuseesacenes 18

State v. Williams, 2023-Ohi0-3526 (11° App. Dist.)......c.sescccsessesseseseesseseesesceseeesreeeeeane 20

SIXTH ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED IN AS A MATTER OF LAW IN OVERRULING APPELLANT'S

MOTION FOR LEAVE: TO THE PREJUDICE OF APPELLANT (“Judgment Entry”, T.d. 98,

p. 3)

ISSUE PRESENTED FOR REVIEW AND ARGUMENT .....0.....cciscclcieesscccseussesesccucseserstesesveseseesecseennses 22

1. Did the trial court erred as a matter of law by ruling contrary to clear and

unambiguous statutory law of Ohio Evid. R. 606(B)(2)(c) when it erroneously concluded

that the testimony from Juror Brunsetter, regarding her recollections of trial

testimony, would be prohibited by Evid. R. 606(B)(1): in violation of Appellant’s right to

Equal Protection of Law and Due Process under Art. 1, § 2 and Art. 1, §16 of the Ohio

Constitution; and under the Fourteenth Amendment of the United States

Constitution?

AUTHORITIES:

Fourteenth Amendment of the United States Constitution .........ccccsscssscssssessesssecssecees 22

Ohio Constitution Art. 1, § 2ecosssscevessuacavesvcnsnansiseasasveusucsen cosuisesscursisvacaiesavnatsoseus sonsectoeseieostaves 22

Ohio Constitution Art. 1, §16.........ccccsssscsessescsecsscsssscscsesscarscescessecescesscsscsacsucsssecevselarsaceesceres 22

Ohio Evid. R. 606(B)(1).........seseeeseseneeeseees Sects APRRSSESBIESONNEUBIERNED ss s0sscosnsats casaseccncsensenssees 22

Ohio Evid. R: 606(B)(2)(C).........sesscescosssscssssessesescsessecsesessesesesesecnscasensarscneeesaanecsacasavacacaseranees 22,23

OHIO JUD. Canon R. Lita cesessesssseencovcnssessessessesceseessessessessenecsceeeeesee ees FsesseMecarsec®ihreassseseeares 22

Sood v. Rivers, 2023 Ohio 3417, [*P36](11" App. Dist.) .0.....cesccsessecstcccscececsesssesssensetssees 22

State v. McNeal, 169 Ohio St. 3d 47, 50 (2022)... ccc ssssesseeeeeeee eee 22

SEVENTH ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED ITS DISCRETION IN

OVERRULING APPELLANT'S MOTION FOR LEAVE: TO THE PREJUDICE OF APPELLANT

AUTHORITES

ADD-R. 9(E) -spsesssnensaneveermnceresncisisesnta\ empesees aosvenessadbradnensieraunveseosaovcm lernverieslioueun etsviseo a wasenancaonusennans 26

Vi

Brown v. Morganstern, 2004 Ohio 2930 (11th App. Dist.)............ccsceeeceeceeetetseseeenecens 25,26

State v Maddox, 2002 Ohio App. LEXIS 1202, [*P17-*P18](11™ App. Dist.) eee 24,25

ISSUES PRESENTED FOR REVIEW AND ARGUMENT............ccssssessessssesssssseesarsesenseeteatarsseeseressenens 27

1. Did the Trial Court err when it erroneously concluded, in direct regard to the

content of Juror Cathy Brunsetter affidavit, that: “Finally, Defendant did not offer clear

and convincing proof that he was unavoidably prevented from obtaining this evidence

within 120 days after the verdict”: in the face of a presentation of substantial

documented evidence to the contrary: in violation of Appellant’s right to Equal

Protection of Law and Due Process under Art. 1, § 2 and Art. 1, §16 of the Ohio

Constitution; and under the Fourteenth Amendment of the United States

Constitution? (“Judgment Entry”, T.d. 98, p. 3)

AUTHORITES

Fourteenth Amendment of the United States Constitution... cece cscesseseeseeescessseseeee 23

Ohio Constitution Art. 1, § Qi. eeceesscesccsscssescoecssssesssscssescecnsssscessvecsseeeeercesserecesereeseaeeneers 23

Ohio Constitution Art. 1, §16....... cecsssssecsssseceessessensesssssnsgssonsecsusceeseuseeseseseescaseesuesseseesees 22

State v. Brown, 2000 Ohio App. LEXIS 1430, [*31](11 App. Dist.)..........csesscsseseeseseee 27

State v. Hogya, 2023-Ohio-342,(11* App. Dist.)........... SS xe See eS «5 27

ISSUE PRESENTED FOR REVIEW AND ARGUMENT...........,.....:cccccccessesscecerseccesererserseseceesersesrersee 20

2. Did the Trial Court err when it erroneously concluded, in direct regard to the

content of Juror Cathy Brunsetter affidavit, that: simply because Appellant utilized the

word unaware such utilization negated the substantial presentation of documented

evidence proving that he was unavoidably prevented from obtaining this evidence

within 120 days after the verdict: in violation of Appellant’s right to Equal Protection of

Law and Due Process under Art. 1, § 2 and Art. 1, §16 of the Ohio Constitution; and

under the Fourteenth Amendment of the United States Constitution? (“Judgment

Entry”, T.d. 98, p. 3)

AUTHORITES

Fourteenth Amendmentof the United States Constitution... ccc ceceesseesseeeseseeeeeeeees 24

Ohio Constitution Art. 1, § 2...c.ccccccssstescsessssescerssvsssssscsussusecessscecssessceseussesavsesacsavessuavenesenses 23

Ohio Constitution Art. 1, §16........ccssscssssscessssecsecsecsecseesscessecscsssssecessessesesevsrcessseusecseecsecssees 24

State v. Piatt, 2023-Ohio-2714,[*P7](9* App. Dist.).......ccssacsvasstsusscnacoseganwessasasasancwawssnstaeas 28

Vil

State v. Tiedjen, 2019-Ohio-2430, [*P20}(8™ App. Dist.)........-ssssscsssesssssesssssneessnneeesnetnes 28

ISSUE PRESENTED FOR REVIEW AND ARGUMENT...........::sessseessserersesecnsnssersnessnenenenenesananeasesnne® 28

3. Did the Trial Court err when it erroneously held: that petitioner was not

entitled to the same level of basic procedural-due-process protections to satisfy the

unavoidably prevented requirement of Crim. R. 33(B): with a presentation of

irrefutable evidence establishing that the court-reporter, instead of the prosecutor,

caused the suppression of evidence that Appellant would relied when seeking a new

trial: in violation of Appellant’s right to Equal Protection of Law and Due Process under

Art. 1, § 2 and Art. 1, §16 of the Ohio Constitution; and under the Fourteenth

Amendment of the United States Constitution? (“Judgment Entry”, T.d. 98, pg.’s 3-4)

AUTHORITIES

Fourteenth Amendment of the United States Constitution .......cecsessseseceenseeseesseeneens 24

Ohio Constitution Art. 1,§ Qescsecscsecccesssssecsscsssessssssrsssssssmssunsssecssuesnsscssovsenseesnneansnneesnnesnnaees 2A

Ohio Constitution Art. 1,§16.....00000. avausanasssata'dabcadiiadWaudebaswonsesesenasstacsenapoauneubeonseenessornrnne: 24

State v. Brown, 2000 Ohio App. LEXIS 1430, [*P28](11" App. Dist.).......rsssrsesee28

State v. Williams, 2023-Ohio-3526 [*P28](11th App. Dist.).......iccsscssssesseesecssnessesseeeen 2D

CONCLUSION. ..ccccccceccssessecscsecse ss stsseserecensssessaseseususseasensssaussueauesnasusessanscneanessnsassanaeanesuenanenssiananensoassees 29

AUTHORITES

App R. O(E) soe esessesre tse teueteeeeeeesesnsneceens pesececarsonagucesstcesisororstonens uesaeconaeocnsscroresenssGogersn rennsnees 29,30

ORC AN, 3.23 sssses seve sie se uessssseseecenceventsesecnesnsscsneneeaescnseaeseeccusansuesensessnsaneaseaeatscenesananensenenesenery 29,30

Crim. R. 33(A)......0006 sin cnvsassecsvsesevccasensusssnacssesueesnessssucsnssnecesseesuecuncensestarsnneessannssaneanennecnnennsgens 29

CIiIM.R. 33(B)...essessessessessenessecnnssenecsnearsatesnsanesnssesnensensansnesuesveenss ec ENSURE SSO 29,30

PROOF OF SERVICE... ..cscesse see wessocssonssscauseseseesssecescensansasonsconcersanessnsuarersvaesacnansssncaesensenanvoveunaannenees 30

Vill

STATEMENT OF THE CASE

PROCEDURAL POSTURE — Relevant Procedural History Only?

On February 24, 1995, appellant and his fiancée arrived at his apartment, where an

argument ensued between them over her suspected drug use which resulted in him telling her

that it was over between them. Monica then accused appellant of being involved with the

mother of his child. She then stated, I.love you. | love you and no one else is going to have you,

she then picked up the gun and appellant grabbed her hand with the gun in it. The gun then

discharged up towards the celling, still attempting to gain control over the gun Monica and

Appellant fell onto the bed where the gun discharged again. However, this time, the bullet hit

Monica in the head. Appellant, in utter shock of what had just occurred somehow gathered

himself and immediately placed a 911 call and informed the operator that his fiancée was shot

in the head and please send help, the operator asked for and received the address.

mr

On March 16, 1995, Brown was indicted by the Trumbull County Grand Jury on one

count of murder with a firearm specification and one count of having weapons while under

disability: Orr-September 25,1995, a jury triat was commenced. (F.d. 25} Whereas-on September

29, 1995, the testimony of witnesses and submission of evidence to the jury was concluded.

(T.d. 31). And after receiving final instruction from the trial judge, Mitchell Shaker, the jury

1 Appellant’s post-trial procedural posture, in his pursuit of justice is quite extensive. Thereby,

herein, Appellant has limited his post-trial procedural posture relevant to the case at bar.

Page 1 of 30

retired from the courtroom to deliberate upon its verdict at 1:10 p.m. Transcript page (T.p.)

582.

At 6:33 p.m. the deliberating jury made several inquiries of the court. The first question,

“we’re noticing discrepancies in evidence of a second shell casing found in Apartment Number

238 and not Apartment 278. Are we to assume that this only an error in apartment numbers, or

was this found (by Ben DiGiovonne) in Felix Brown’s dad’s apartment?” The second question,

same time, is the stipulation of the murder charge, the word purposely, “in other words, if it

was not a purposely committed act, is he not guilty?” T.p. 584-585. At 6:50 p.m. the court

refused to specifically respond to the jurors’ two inquires: instead Judge Shaker informed them

that they’ would have to rely on their memory regarding the evidence pertaining to the

recovery location of the shell casing. And in regard to their second inquiry (again, according to

the trial transcript) Judge Shaker stated: “There is no way a Judge can answer that question

except to give you the charge that | gave you (regarding) Purposely...” T.p. 585-587.

At 8:00 p.m. the deliberating jury submitted the following question to the Court. “We all

agree on the second count (having a weapon while under disability). Should we sign the Verdict

or Count Two?” At 8:03. p.m. the Judge had them. returned to the courtroom where he

delivered a supplemental “Allen Charge” instruction. And asked the following “I am interested

in knowing whether or not there is a possibility of reaching an agreement within a reasonable

time?” And after not receiving a definitive answer from the Forelady, Judge Shaker instructed

them “to continue their’ deliberations until 9:00 p.m. and see what happens.” At 8:10 p.m. the

jury retired from the courtroom to continue their deliberations. T.p. 587-591. And

approximately 9:00 p.m. the jury announced that they had arrived at a guilty-verdict on both

Page 2 of 30

counts. And at 9:18 p.m. Brown was escorted from the Trumbull County Jail to the Courthouse:

where he was pronounced guilty on both counts. T.p. 591-592.

Appellant was sentenced to Eighteen years to Life on 10/03/1995. (T.d. 32).

A notice of appeal was filed on 10/31/1995. (T.d. 33).

At some point after Brown’s notice of appeal was filed, Atty. Michael Scala was

appointed as Brown’s direct appeal appellate counsel (whereas Brown received absolutely no

notification of such from the court or Atty. Scala). On 05/02/1996 Atty. Scala filed a motion for

extension of time to file Appellate brief, with the Eleventh District Court of Appeals — and, still,

Brown received absolutely no contact from Atty. Scala. Then, apparently, on 06/13/1996 the

court of appeals sua sponte dismissed Brown direct appeal: for want of prosecution. (T.d. 37).

Brown not receiving any word, from anyone, regarding the statue of his direct appeal

since the filing of his notice of appeal by defense counsel: directed two correspondences to the

Eleventh District Court of Appeals, via certified mail, on 07/26/1996 and 10/16/1996, inquiring

about the status of his appeal... (Motion for Leave...T.d. 83, attached thereto Appendix A).

On 09/09/1996 Attorney Michael Atty. Partlow filed an application to reopen Brown’s

direct appeal. (Matian for Leave...T.d. 83, attached: thereto Appendix A). And on 10/30/1996

the court of appeals granted the application and appointed Atty. Atty. Partlow as counsel to

represent Brown therein. (Motion for Leave...T.d. 83, attached thereto Appendix A).

Atty. Partlow, then notified Brown, via correspondence, that he had been appointed as

his new appellate counsel by the court of appeals on 10/30/1996.

THE FOLLOWING CONTAINS DIRECT QUOTES BY THIS COURT

“[P]artlow reviewed the trial transcript and forwarded it to appellant. Appellant contended

that the trial transcript was materially inaccurate, and Partlow discovered that the Trumbull

Page 3 of 30

County Court of Common Pleas audiotaped important criminal trials, including trials for murder.

Partlow forwarded a written transcript of the audiotapes to appellant, enabling appellant to

specify which part or parts of the trial transcript he claimed were materially inaccurate.

Appellant provided Partlow a very detailed comparison of the trial transcript and the written

transcript from trial court's audiotape of the trial, and appellant outlined differences he claimed

existed between the trial transcript and the transcript of the audiotapes and between the trial

transcript and the testimony he recalled was given during trial. Appellant wrote to Partlow,

"[as] | informed you previously, there is no way that any audio tapes were recorded during my

jury trial. The audio tapes were made after the fact (after my trial) for the purpose of

supporting my intentionally altered transcripts.” (Emphasis sic.)

“This court remanded appellant's criminal appeal pursuant to App.R. 9(E) to determine

whether the trial transcript must be corrected. Prior to this limited remand hearing, the trial

judge (soon after learning the identity of the specific witnesses Appellant intended to have

testify within the App. R. 9(E) hearing,) decided, off the record, that the trial witnesses would

not testify at the hearing to their trial testimony. Appellant voiced his dislike for this decision in

writing to Partlow and requested that Partlow object on the record, by any legal means

possible, to this ‘ruling’ so to make the trial judge's decision part of the record. Partlow did not

follow these instructions. At the limited remand hearing, the trial, court heard testimony from

appellant, appellant's father, appellant's trial counsel, and the court reporter. During this time,

appellant contends he urged Partlow to cross-examine the court reporter to make her admit

that the trial transcript was ‘materially inaccurate.’ Partlow did not follow these instructions.

‘In its February 27, 1999 judgment entry, the trial court stated that ‘upon full and final

review of [appellant's] motion, this Court finds it to be, in all respects, bordering on frivolous.

[Appellant's] recollections were generally self-serving and without any basis‘in fact. *** This

Court finds the official transcript of this Court to have been completed in a true, accurate and

professional manner.”

Id. Brown v. Morganstern, 2004-Ohio-2930, [*P4-*P5](11™ App. Dist.)

Appellant, thereafter, appealed his convictions. He put forth nine assignments of error;

the seventh assignment of error being the only one relevant to the instant appeal. To wit:

“THE TRIAL COURT'S DECISION CONCERNING THE EVIDENTIARY HEARING REGARDING THE

INACCURACIES OF THE TRIAL TRANSCRIPT OF THE PROCEEDING WAS AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE.”

Whereas, in deciding this assignment of error, this Court pronounced:

“In his seventh assignment of error, appellant alleges that the trial court's decision

regarding the alleged inaccuracies in the trial transcript was against the manifest weight of the

evidence. Appellant contends that there are numerous discrepancies between the audio tapes

of the trial and the trial transcript, and the trial court's failure to correct the discrepancies

resulted in his inability to argue certain errors on appeal.

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